MORAL of the day: If you’re going to give white job applicants the shaft, don’t be blatant about it. Moral No. 2: Don’t annoy Supreme Court Justice Anthony Kennedy.
Yesterday’s 5-4 high-court ruling in Ricci v. DiStefano, the big reverse-discrimination case, doesn’t have the broad philosophic sweep that some hoped. The real fire seemed reserved for the city fathers of New Haven, Conn.
As everyone now knows, New Haven threw out the results of a firefighter-officer test because blacks didn’t score as well as whites.
Yet many of both races had passed, and many others failed — and the test had been devised with considerable care for the interests of minority test-takers. Tossing the test seemed like clear racial discrimination, so furious white applicants proceeded to sue.
Despite a small mountain of evidence attesting to the city’s discriminatory intent, a federal judge threw out the case on summary judgment. On appeal, a majority of judges on the US Court of Appeals for the Second Circuit that included Judge Sonia Sotomayor gave the complainants barely the time of day, simply affirming the lower-court opinion.
Don’t expect this to pose much of a hurdle in Sotomayor’s glide to high court confirmation: There’s no sign her position is noticeably different in substance from that of either departing Justice David Souter, whose seat she would be taking, or Ruth Bader Ginsburg, who penned yesterday’s four-justice dissent.
And Justice Kennedy’s majority opinion yesterday avoided the constitutional issues of equal protection, instead focussing on narrower questions of how employers should handle “sued if you do, sued if you don’t” questions of hiring bias. (Answer: An employer needs a “strong basis in evidence” to show that he “would have been liable” if he hadn’t discriminated.)
Most of all, Kennedy went out of his way to document his evident disgust with the way New Haven leaders, from Mayor John DiStefano on down, handled the firefighter controversy.
The after-the-fact and pretextual rationalizations they devised, Kennedy wrote, were “blatantly contradicted by the record.” And that was just the start of the unwelcome scrutiny of New Haven’s town fathers.
Justice Samuel Alito jumped in with a concurring opinion that went on for pages, even more scathingly than Kennedy, about the low state of politics in the city. (He documented, in particular, the role of the Rev. Boise Kimber, a black community leader and political “kingmaker” who’d pushed the city to throw out the test results.)
It’s not often that Supreme Court opinions go into such detail to criticize the way a city is run. Some high-profile figures in Connecticut’s Elm City must be quite embarrassed right now — if they’re capable of embarrassment.
Justice Ginsburg made a valiant effort to put the best interpretation on the city’s handling of the affair, pointing out (which is true as far as it goes) that there’s no law against politicians’ being political. But her dissent failed to convince Kennedy’s majority even to send the case back to the lower courts, as the Obama administration had urged. Instead, the city lost outright.
Nonetheless, reverse-discrimination cases will probably remain hard to win — if only because not many employers are as blatant as New Haven about it.
And because yesterday’s decision dealt only with the interpretation of the civil-rights statutes, as opposed to constitutional law, Congress can at any time step in to change or correct it — and probably will do so at the first sign of a major new wave of suits by disappointed majority-class members.
Neither side is eager to admit it, but fundamental asymmetry in civil-rights law — whereby reverse discrimination simply isn’t taken as seriously as an evil as “regular” discrimination — is at this point a policy deeply entrenched in our political and legal life, under Republican and Democratic rule alike.
Walter Olson is a senior fellow at the Manhattan Institute. His blog Overlawyered.com, the world’s oldest blog about law, turns 10 this week.